Friday, May 5, 2017

Are we common law married in Texass?

If you go to a courthouse in Texas and fill out the form to establish a common law marriage then you are as married as anyone else in Texas.

To end the marriage, you need a divorce. A judge must sign a legal document ending the marriage.

There are many common misunderstandings about common law marriage in Texas.

Some that are wrong are --

1. We have lived together 7 or more years. If that is it, then you are NOT married in Texas.  In Texas you can be together for 24 hours and be common law married IF you do things to show you intend to be married.

2. My fiance is married already to someone else. Can we also be common law married in Texas? No! In Texas you can only be married to one person at a time. Therefore, if a person is married no matter what they do they are not married to another person. Being married to two people is bigamy which is a crime in Texas.

Plus, bigamy is only prosecuted by the District Attorney. And, quite frankly, it is rarely prosecuted since DA's are busy with serious, violent criminals.

Note: There are a few exceptions where a common law marriage should be presumed to be valid but you will need a brilliant and aggressive attorney to make this argument and a judge that is extremely flexible in the interpretation of Texas laws.

3. We have kids together. Sorry - not enough to be common law married.  If you break up the children issues to be handled through the court system such as child support and a child visitation arrangement -- but no community property to divide.

4. I am 14 - can I common law marry my boyfriend? No. Marriage under the age of 16 is not allowed in Texas so you don't qualify to establish a common law marriage.

You must be over the age of 18 (age of adulthood in Texas) in order to establish a common law marriage.

5. A friend called me "his wife" and he did not correct the person. So are we common law married?  Again, not enough.

6. We file our taxes are single, but I think we are common law married.  Filing your taxes as single shows that you do not intend to be in a common law marriage. It will be used against you in the courtroom. This argument against a common law marriage can be rebutted but if you want to be married then you need to act like you are married for everything - you cannot pick and choose.

7. I was common law married but we have not lived together for more than 2 years - is that a common law divorce? In Texas, it can be presumed that after splitting up more than 2 years that there was never any intent to be common law married. However, this presumption can be overcome.

As you can see, it complicated.

If you want a common law marriage do things like (not an all inclusive list):
Both of you must be an adult and mentally competent
Both of you must agree to be married to the other person
You have to tell others that you are married
You have to do paperwork to be married - file taxes together, have joint bank accounts as spouses, put the other person on your insurance as your spouse, add the person to your health insurance as your spouse, etc. In other words, leave a paper trail. And you both have to participate - one person cannot do something behind the other party's back - you must both participate in showing you intend to be married.

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